Johnson v. S.O.S. Transport, Inc.

• Decision Date: 20 February 1991
• Docket Number: No. 89-6032,89-6032
• Parties: Nora JOHNSON, Administratrix of the Estate of Melvin Mattingly, Deceased, Plaintiff-Appellant, v. S.O.S. TRANSPORT, INC., Defendant-Appellee, Central Transport, Inc., Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 516

926 F.2d 516

Nora JOHNSON, Administratrix of the Estate of Melvin

Mattingly, Deceased, Plaintiff-Appellant, v. S.O.S. TRANSPORT, INC., Defendant-Appellee, Central Transport, Inc., Defendant.

No. 89-6032.

United States Court of Appeals, Sixth Circuit.

Argued June 11, 1990.

Decided Feb. 20, 1991.

Norman E. McNally (argued), Louisville, Ky., for plaintiff-appellant.

Gerald J. Rapien (argued), Taft, Stettinius & Hollister, Cincinnati, Ohio, Robert Winter, Taft, Stettinius & Hollister, Ft. Wright, Ky., for defendant-appellee.

Before KRUPANSKY and NORRIS, Circuit Judges, and MILES, Senior District Judge. ^*

MILES, Senior District Judge.

This is a wrongful death case in which the plaintiff appeals from an order granting summary judgment to the lessee of a semi-truck. The plaintiff alleges that her son, a truck driver, was killed while transporting a load of steel for defendant S.O.S. Transport, Inc. ("S.O.S."), the lessee of the vehicle in question. She asserts that the S.O.S., a common carrier regulated by the Interstate Commerce Commission, was negligent in its maintenance and inspection of the vehicle, causing it to leave the roadway and resulting in the death of her son.

The district court held that S.O.S. owed no duty to the plaintiff's decedent, under the common law of Kentucky, to maintain the vehicle in which he was killed. The district court also held that federal law does not provide a separate federal tort remedy for drivers of common carriers who are injured due to the failure of such carriers to comply with applicable federal safety regulations. Because we believe that the federal regulatory design extends protection to drivers of common carriers, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion.

I

S.O.S., a corporation having its principal place of business in Ohio, holds a certificate which permits the company to operate as a motor carrier under the regulatory authority of the Interstate Commerce Commission. The company owns none of its own trucks and employs no drivers. Instead, it leases equipment from others, under arrangements in which the lessors of the equipment also supply the drivers.

On July 8, 1985, S.O.S. entered into a "trip" lease with Robert Donato, a self-employed owner and lessor of trucks and trailers used in the steel hauling business. Under this lease, Donato agreed to provide S.O.S. with a tractor, trailer, ¹ and a driver for transportation of a load of steel from Middletown, Ohio to High Point, North Carolina. Pursuant to the lease, Donato furnished S.O.S. with the truck and the services of a driver, Melvin Mattingly. Mattingly had regularly driven the truck on trips for Donato since April, 1985.

Mattingly departed from Donato's place of business at Crittenden, Kentucky and first drove the truck to Monroe, Ohio, to the place of business of Glendeen Justice Candee. S.O.S. admits that Candee, a freight broker, served as authorized agent for S.O.S. in executing the lease and in allegedly performing an inspection of the vehicle as required by federal regulations. After completion of the inspection and paperwork, an employee of Candee's gave Mattingly placards bearing S.O.S.'s Interstate Commerce Commission identification numbers, for attachment to the tractor. Mattingly then departed for Middletown, Ohio, to pick up the load from the shipper.

Mattingly left Middletown on July 8, 1985, hauling a 46,000-pound load of steel. On July 10, 1985, Mattingly was killed while en route to High Point, North Carolina, when the truck left the road as it descended a mountain grade. ²

The plaintiff Nora Johnson, Mattingly's mother and the administratrix of his estate, filed this diversity wrongful death action, seeking to recover damages from S.O.S. ³ Although Johnson did not state in her complaint what defect or defects in the tractor-trailer form the basis for her allegation that S.O.S. was negligent in maintaining the vehicle, she has stated, in response to discovery requests, that the vehicle's brakes and bulkhead were deficient.

S.O.S. filed a motion for summary judgment on July 31, 1987, and again on May 31, 1988, after Johnson filed her amended complaint. On September 14, 1988, the district court issued an order granting partial summary judgment, "to the extent that ... the opinion of White v. Excalibur Ins. Co., 599 F.2d 50 (5th Cir.1979) is applicable to the facts of this case." ⁴ In this same order, the district court also ordered the parties to brief the question of whether the "White" rule should apply to a carrier who did not provide workers' compensation insurance for drivers. ⁵ The court referred this latter issue to the magistrate for resolution. On March 14, 1989, the magistrate issued a report and recommendation in which he concluded that notwithstanding the lack of workers' compensation insurance, summary judgment should be granted to the defendants "to the extent the plaintiff claimed relief solely for violation of federal safety statutes and regulations and to the extent the state common law negligence claim is based on the alleged federal violations." The magistrate also concluded that Johnson continued to have a cause of action in negligence against S.O.S. under state law. S.O.S. filed an objection to this latter conclusion reached by the magistrate. On June 30, 1989, the district court issued an order granting summary judgment to the defendants, adopting the magistrate's conclusion that Johnson could not avail herself of the federal statutes and regulations, and rejecting the magistrate's conclusion that Johnson could continue to maintain her action under Kentucky common law.

II

Initia1ly, we conclude that the district court was correct in its determination that Kentucky law affords Johnson no basis for her common law negligence claim against S.O.S. ⁶

Johnson's common law theories of recovery fall into three basic categories. First, Johnson claims that S.O.S. may be held liable under a bailment theory for negligently "furnishing" the allegedly defective truck to Mattingly. Under Kentucky law, a bailor who does not retain control of the article bailed is not responsible to a third person for its negligent use by the bailee. American Fidelity & Casualty Co. v. Pennsylvania Casualty Co., 258 S.W.2d 5 (Ky.1953). According to Johnson, the trip lease between Donato and S.O.S. was a bailment, under which Donato, as bailor, retained no control over the truck, rendering S.O.S., as bailee, liable to third persons injured through its negligent use.

We find this bailment theory of liability to be inapplicable under the facts of this case. It is undisputed that Donato in fact retained substantial, if not complete, control over the truck. The trip lease provided that Donato retained responsibility to "[c]ontrol the manner, means, or methods for the accomplishment" of the lease, as well as responsibility to load the truck. Indeed, the lease specifically provided that S.O.S. would have no right "to control the manner, means, or methods utilized by the Lessor for the accomplishment of the results of this Agreement." The lease also provided that Donato retained responsibility to provide maintenance for the truck. When he developed a problem with the truck, Mattingly contacted Donato, not S.O.S., for instructions. While a federal statutory presumption of control over the vehicle may have applied to S.O.S. during the performance of the trip lease (as discussed in a subsequent part of this opinion), in the absence of actual control on the part of S.O.S., we cannot conclude that this presumption renders S.O.S. a bailee under traditional common law principles of control. ⁷ Johnson's second common law theory of recovery in negligence is similarly based upon an assumption that S.O.S. "furnished" the truck to Mattingly. According to Johnson, if it is determined that Mattingly was an employee of S.O.S., S.O.S. may be held liable for failing to furnish Mattingly with a safe place to work and safe tools and appliances. Johnson cites Louisville and Jefferson County Bd. of Health v. Mulkins, 445 S.W.2d 849 (Ky.1969) in support of this argument.

In making this argument, Johnson appears to be arguing in the alternative; she repeatedly insisted at the district court level that Mattingly was not S.O.S.'s employee. Indeed, the undisputed facts demonstrate that if Mattingly was an employee of anyone, he was most likely an employee of Donato. See Garland v. Wayne Maxwell Trucking Co., No. 89-CA-002115 (Ky.Ct.App. April 27, 1990). Therefore, we find this theory, like Johnson's bailment theory, to be inapplicable under the facts of this case.

Johnson's third common law theory of recovery in negligence is based upon a "universal" duty of care. As the Kentucky Supreme Court has previously stated, "[E]very person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury." Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328, 332 (Ky.1987) (citing M & T Chemicals, Inc. v. Westrick, 525 S.W.2d 740, 741 (Ky.1974)). Johnson argues that the universal duty of care "encompasses the obligation to furnish [drivers] with proper equipment." ⁸ (Tr. at 22)

Although the Kentucky Supreme Court has not expressly abandoned the universal duty concept of negligence, S.O.S. argues that the concept has been effectively abandoned "for more traditional notions of duty based on recognized legal relationships." See Ralston Purina Co. v. Farley, 759 S.W.2d 588, 592 (Ky.1988) (Leibson, J., dissenting: "[A]s we have done in several recent cases, here once again we abandon the negligence concept for artificial rulemaking[.]") Whether the concept survives to support the existence of a duty of care flowing from S.O.S. to Mattingly has not been directly addressed by the district court. However, because this is a question of law, we address it. ⁹ (Tr. at 22)

We agree that the continued viability...